Sunday, February 20, 2011

World War II Controversy Surfaces in Annapolis

WWII controversy surfaces in Annapolis
Bill could thwart bid by Holocaust-linked firm to seek MARC contract

A dispute with its roots in the Holocaust will receive a hearing in Annapolis next week as lawmakers consider legislation that could effectively bar an affiliate of the French national railway from bidding on a contract to operate two of the state's three MARC commuter lines.

Bills in the House of Delegates and Senate could require SNCF — Société Nationale des Chemins de fer — to make extensive disclosures of records chronicling its role in the transport of Jews and others from France to Nazi death camps during World War II in order for its subsidiary to bid on the contract.

Jack Cahalan, a spokesman for Maryland Department of Transportation, said the department will not discuss its position on the legislation until the hearing in the House of Delegates on Wednesday.

One of those planning to testify before the General Assembly is 89-year-old Leo Bretholz of Pikesville.

Bretholz escaped from a cattle car on a train operated by SNCF on Nov. 11, 1942. His destination, before he pried open a window and jumped from the train, had been Auschwitz. He was one of an estimated 76,000 people placed on SNCF transports to Nazi death camps. Only about 2,000 survived.

An SNCF subsidiary is considered one of the leading likely bidders for the multimillion-dollar contract to operate the MARC Camden and Brunswick lines. But Bretholz plans to do his part to pressure the company to make amends by traveling to Annapolis to speak before a House committee in favor of the bill that could stymie the railway's efforts to win the state's business.

"The SNCF has never come up with a clear statement of contrition and apologies," said Bretholz, whose 1999 book "Leap Into Darkness" chronicles his escape from the Nazis.

The legislation is part of a national effort by Holocaust survivors and their supporters to win reparations from the French company by persuading legislators to throw roadblocks in the way of its bidding on government contracts in the United States.

In Maryland, the survivors' group is attempting to reach SNCF through Keolis America, a bus and commuter train operations company in which the French railroad holds a 57 percent interest. But Steve Townsend, president of Keolis, insists the two firms have separate managements and distinctly different histories.

"We are not SNCF. We have no World War II history to disclose," he said.

According to Townsend, the French railway was a minority shareholder until about a year ago. He said that for the past two years the company has managed its operations through its headquarters in Rockville.

The effort opens doors on a painful chapter in French history after its defeat by Nazi Germany. After the Germans routed French troops in 1940 and forced the country's surrender, it installed a collaborationist government in Vichy and seized control of the French railway system while leaving many of its managers in place. When the Germans ordered the roundup and deportation of Jews in France, SCNF provided the transports.

Since the war ended, a historical debate has raged over the degree to which French authorities — including SNCF officials — were helpless pawns of the Nazis or willing collaborators.

For Bretholz, the answer is clear. "They were accomplices," he said. "It was done with deception and cruelty and precision."

A question of guilt

It has been more than 65 years since the last SNCF train carrying doomed victims reached the German border, but proponents of the legislation insist officials of the French company and its subsidiary must atone for their predecessors by paying restitution to the victims and their heirs.

Del. Samuel I. Rosenberg, the Baltimore Democrat who is sponsoring the House version of the bill, said SNCF should still be held liable for the damage done to Holocaust victims.

"A corporation's legal liability does not end when those responsible for those decisions are no longer working for the company or no longer alive," he said.

But Peter Kelly, a Los Angeles-based attorney for SNCF, said the French government has legally assumed the responsibility for paying reparations claims. He said France has paid out more than $1.5 billion in SNCF-related damages since 1945 and is prepared to pay more. SNCF, he said, is prepared to help those who step forward to make claims.

Kelly said he's read the Nazi messages from that era to SNCF and found its officials were given an agonizing choice.

"You basically either did what they told you, or you were going to be shot and so was your family," he said. According to the railroad, more than 1,000 of its employees were executed for resisting the Nazis.

Late last year, SNCF issued a public apology for its conduct during the war. But the Holocaust survivors who brought suit against the company rejected the statement as inadequate.

Opinions among Jewish leaders and advocates for Holocaust survivors vary, however. For instance, well-known Nazi hunter Serge Klarsfeld has worked with SNCF on Holocaust remembrance projects and has described the campaign against the company as unjust.

Rosenberg's bill, whose lead sponsor in the Senate is Democratic Sen. Joan Carter Conway of Baltimore, would not bar Keolis outright from bidding on state contracts. Rather, it specifies that for one particular contract — taking over operations of the Camden and Brunswick lines from CSX Transportation — all bidders must disclose whether they were involved in the transportation of prisoners to death camps in Europe from 1942-1944.

If the answer is yes — and no bidder other than Keolis is likely to have to answer yes — then the bidder is required to provide an extensive record of its wartime activities, including an accounting of all property seized from prisoners and records of what payments it received for the deportation of people to the death camps.

The extensive list of records bears a strong resemblance to a demand for discovery of documents in a civil lawsuit. And, in fact, proponents say one of their key goals is to force SNCF to divulge a complete record of its wartime activities under Nazi direction — a disclosure the railway insists it has already made.

Holocaust survivors, including Bretholz, have been stymied in their efforts to force reparations from SNCF. A U.S. District Court upheld the company's claim that SNCF is entitled to sovereign immunity because it is a foreign government entity. That decision was upheld by the 2nd U.S. Circuit Court of Appeals.

Raphael Prober, an attorney with the Washington law firm Akin Gump, said lawyers for the survivors are seeking a review of that ruling by the Supreme Court. But while that appeal is pending, the survivors group is pursuing a parallel legal strategy in several state legislatures, including Maryland's.

In California, Florida and other states, Holocaust survivors have asked legislators to introduce bills aimed at making it difficult for SNCF to bid on state contracts. The effort gathered momentum after Keolis was awarded a contract in 2009 to take over Amtrak's role in operating the Virginia Railway Express commuter line.

The award brought protests from survivors — but only after the deal was already done.

Last year, with CSX wanting to get out of the passenger rail business to concentrate on freight, the state sought bidders for operating the Camden and Brunswick lines. After Amtrak dropped out, Keolis was the lone bidder.

Maryland Transportation Secretary Beverley K. Swaim-Staley canceled the procurement process last fall so that the state could draft a new request for bids. She said she did so not because of the simmering controversy over SNCF but because the state wasn't satisfied with the number of bids it had received.

Constitutional questions

One question that could arise is the constitutionality of the measures. A leading constitutional scholar said the measure, if passed, could run afoul of Article 1, Section 9 of the Constitution, which forbids passage of any "bill of attainder."

A bill of attainder is a legislative act that punishes a specific person or entity for a past action that lawmakers judge to have been wrong. The framers of the Constitution, familiar with the English practice of condemning people to death or confiscating their property by act of Parliament, banned the practice.

David Kairys, one of the nation's handful of experts on bill-of-attainder law, reviewed the Maryland bill and said it raises serious issues.

"It certainly shares a lot in common with other bills of attainder that have been invalidated," said Kairys, a constitutional law professor at Temple University in Philadelphia. "Bill of attainder is really kind of a mob scene in a legislature. That is what they're supposed to avoid."

But Patricia Millett, head of the Supreme Court practice at Akin Gump, predicted the courts would reject a challenge to the legislation on bill-of-attainder grounds.

"There's no adjudication of criminal guilt. There's no imposition of something that's been defined as criminal punishment," she said. "All it is a request for information for a government to make contracting decisions on the provision of public services that principles of federalism would protect."

Townsend said the legal issues likely wouldn't matter because his company isn't inclined to challenge the measure in court if it passes. He said Keolis would probably just walk away from the MARC bidding.

"This legislation would put us in the position of having to certify shareholder disclosure," he said. "We can't do it."

In addition, he said, the legislation would put Keolis at a competitive disadvantage against other potential bidders. "We would do business someplace else," he said.

If Keolis doesn't participate, the pool of bidders on the Camden-Brunswick contract could be relatively shallow. Cahalan said the typical contract of this sort draws perhaps three to four bidders.

Caught the middle of the dispute are the riders of the Camden and Brunswick lines, whose hopes for improved service might hinge on whether the state can foster competition for the contract to provide train service.

Rafi Guroian, chairman of the MARC Riders Advisory Commission, said he would be concerned about the loss of a qualified bidder.

"It's better with them in it from an experience standpoint," he said. "The more we have bidding, the more competition will foster a better service in the end."


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